P L D 1977 Karachi 675 (PLP)

4. The charge framed against the appellant by the special Tribunal is, that during the period from February to May 1973 the appellant by speeches and conduct at Kandkot brought into hatred and excited disaffection towards the Government established by law and promoted feelings of enmity and hatred between different classes of citizens of Pakistan and thereby committed offences punishable under rule 42, clause (6) (e) & (g) of the Defence of Pakistan Rules. None of these allegations were mentioned in the D. O. letters written by headmaster to the District Education Officer, Jacobabad. The report dated 24‑5‑1973 sent by the D. E. O. to Superinten dent of Police, Jacobabad also did not mention any allegations disclosing the offences mentioned in the charge. All that had been said in the report was that he was engaged in disruptive activities and trying to disturb the atmosphere of the school. The charge shows the place of offence as Kandkot while during the relevant period Kannayalal was posted at Bakbshapur. The case actually registered by the police on the basis of this letter ie, however, entirely different. This case was registered, as already stated, at Bakhshapur Police Station and not at Kandkot. The F. I. R. contained allegations which were entirely different from the letter of the District Education Officer and for which there was no material. The alleged incident forming the subject‑matter of the F. I. R. was shown in the report to have occurred from 16‑3‑1973 to 25‑5‑1973.

5. Regarding the alleged speeches and conduct constituting the above offences, the evidence recorded, consists of the depositions of (1) Abdur Raaaak Headmaster, (2) Ghulam Rasool 1st Assistant, (3) Mr. Muhammad Abu Zar Siddiqui, D. E. O , (4) Mr. Abdul Wahid Headmaster, (5) Mr. Ghulam Rasool Constable N'o. 711 of Kandkot, and (6) Mr. Muhammad Umar. Investigating Officer, A. S. I., Bakhsbapur. The prosecution has then closed the side and the appellant led the evidence of four defence witnesses including headmaster Ali Muhammad, Exh. 13.

6. It is remarkable that none of the prosecution witnesses except the Police Constable has specifically deposed in respect of any alleged speech or act which could be attributed to the appellant and which would make him liable for any substantive offence under the respective clauses of the Defence of Pakistan Rules contained in the charge. The evidence of Mr. Abdur Razzak would show that his predecessor had warned him that Kannayalal was a disruptionist. This would, however, be a matter of opinion and it was not even known what the predecessor meant by using the term. He has then alleged that at Kandkot the appellant used to tell the boys that this was a 'Zalmana Government' or that the Sindhis and Mohajirs could not be brothers and so on. The witness has not stated whether on any particular day the appellant made any speech either in his class or at some meeting addressing the children and whether any report of his speech was taken down. None of the students to whom the speech was supposed to have been made has been examined as a witness. Mr. Abdiu Razzak does not say that be was present or he heard the appellant making such a speech, nor does any such speech made at Kandkot form the basis of the charge. The evidence of Mr. Abdur Razzak consists of vague allegations for which Mr. Abdur Raaaak has not been able to show any basis. Obviously Mr. Abdur Razzak had a grudge against the appellant as he and other teachers had passed a resolution against him alleging that his treatment with the teachers was most unfair. He had accordingly been asking for the transfer of Kannayalal whom he considered as an intriguer and wanted to get rid of him. Mr. Abdur Raszak has then produced a letter written in Sindhi by one Abdul Ghaffar who was by profession a Hakeem There is nothing in the letter excepting the opening words : 'Joe‑aye Sind'. That would, however, show that the writer of that letter had used the term Jee‑aye Sind, but it would not suggest that the person to whom the letter was addressed had belonged to the same school of thought. The letters written by the headmaster to the District Education Officer, Jacobabad do not contain any specific allegation pertaining to the two charges fear which the appellant was subsequently prosecuted. All that had been shown against the appellant was about the intrigues and acts of instigation. Afterwards when Kannayalal was taken up as a member of the Secondary School Teachers' Association on the Coordination Committee he was considered to be an undesirable element in the school. 7, The next witness Ghulam Rasool is an assistant teacher of Government High School, Kandkot. He has also deposed in general terms that the appellant had association with 'Joe‑aye Sind' Movement. That he came to know this through the students but he has not named any of the students who told him about the activities of the appellant nor has any such student been examined.

8. Then there is evidence of Muhammad Abu Zar Siddiqui that Abdur Razzak had informed him on telephone that some teachers under the leader ship of Mr. Kannayalal were instigating the students of the school to go on strike and to bring into momentum 'Joe‑aye Sind' Tehrik. He has then stated that Kannayalal was a Commurist and had no faith in God and was working against Islam. All these allegations, however, do not bring the case within the purview of tee offences under the Defence of Pakistan Rules. He h‑.s then stated that he sent a report to the Superintendent of Police, Jacobabad regarding the activities of Kannayalal. This report as already described above does not contain any specific allegations regarding commis sion of offences mentioned in the particular clauses forming subject‑matter of the present charge.

9. P. W. Abdul Wahid Headmaster is the next witness. He too has admit ted that the appellant had sent his complaint against him to the Director and the same had been handed over to him for being forwarded to the Director on 1‑1 t‑1912. Under these circumstances Mr. Abdul Wahid had considered the appellant to be a mischievous person and he accordingly spoke against him to his officers.

10. The evidence of Police Constable Ghulam Rasool appears on the face of it to be false and absurd. He has stated that on 11‑5‑1973 while he was going in a bus the appellant was talking loudly to passengers sitting in the bus asking them to join 'Jee‑aye Sind' Movement.

11. The last witness. A. S.1. Muhammad Umar had hardly anything to add to what the other witnesses have said. The A. S. I. has admitted that from 16‑3‑1973 to 25‑5‑1973 the period mentioned in the charge, he had no other reports against the accused except the one made by Constable Ghulam Rasool. That he had not examined any teacher or student of Bakhahapur High School before challaning the appellant for these offences. Ordinarily when the activities of a person ate suspected to be anti‑State activities, a close watch is kept by the local intelligence and the C. I. D. over the person and his record is maintained at the Police Station. In the present case the police had no information about the anti‑State activities of the appellant who was a Hindu and no such evidence has been brought on record in the present case against him. The entire evidence consists of the vague alle gations of the two headmasters and the District Education Officer Mr. Muhammad Abu tar who were against this teacher from the very beginning and who had no liking for him because he was outspoken and was frank and fearless. We are, however, told by Mr. Ali Muhammad Headmaster that his work as teacher was excellent and in spite of the warnings which he had received from Mr. Abu Zar he had given him best confidential remarks.

12. This the entire evidence against the appellant boils down to nothing. It is vague and hearsay evidence and is not based on any material facts. In fact the entire evidence is inadmissible. Even for offences under the D. P. R. the evidence must he recorded in accordance with the principle laid down in the Evidence Act. For instance, if reliance is placed on oral evidence it must be direct and if it refers to a fact which could be seen, it must be evidence of a witness who says he saw it and if it refers to a fact which could be beard it must be the evidence of a witness who says he heard it. If it refers to an opinion then the person holding that opinion must state his grounds on which such opinion is held. In the present case these witnesses have neither seen anything nor have they heard anything themselves and they have relied on the vague allegations made by some students whom they cannot name and who could not be brought in support of these allegations. The appellant has been condemned as a communist ; as an atheist, as an agent and so on but none of the witnesses have been able to suggest the reasons for holding such opinion. The case was registered at Bakhshapur but the offence is alleged to have taken place at Kandkot and the time and place of the commission of the offence have been left vague and indefinite. Before the F. I. R. was registered there was no basis even for making such allegations.

13. Mr. Usman Ghani Rashid, Assistant Advocate‑General frankly concedes that on the evidence recorded in this case, none of the offences stated in the charge have been sufficiently established against the appellant. He also agrees, that this type of evidence of general repute is too vague and cannot be considered as relevant for the purpose of proving a substantive offence against the appellant.

14. Mr. Nasiruddin has then argued that the proceedings and the trial of the appellant had been vitiated due to transfer of the case from the file of the District Magistrate to the Special Tribunal, in violation of Article 25 of the Constitution, This Article which was based on Article 29 of the Interim Constitution provides, that all citizens are equal before law and are entitled to equal protection of law. Mr. Nasiruddin has argued that this was a case of discrimination and the case was withdrawn from the ordinary Courts and sent to Special Court for trial. It is true that Fundamental Rights had been superseded with effect from 13‑8‑1973. The notification was there after issued by Government of Pakistan transferring this case to the Special Tribunal on 28th December 1973. Meanwhile the Fundamental Rights were restored on 14th August 1974. This restoration of Fundamental Rights affected the pending cases, because before the judgment was delivered the prosecution could not be considered as closed. Mr. Nasiruddin has pointed out that this lacuna in the law in violation of Article 25 regarding discrimination, was afterwards rectified by an amendment by Ordinance No. III of 1976. Section 9 of the Defence of Pakistan Ordinance providing that the Government may by general or special order direct that Special Tribunal may try any offence otherwise triable by ordinary Courts was omitted, and all such class of cases thereafter became triable by Special Tribunals only. Mr. Nasiruddin has referred to the decision of the Supreme Court reported in Syed Abul A'la Maududi and others v. Pakistan (P L D 1964 S C 673). In that case the point considered was that after the restoration of Fundamental Rights the disposed of cases started under the law which contravened the Fundamental Rights, were not affected and the conviction, if any, could not be act aside on that ground because the right had already been taken away and extinguished before the constitutional guarantee became available. But if the right was still subsisting and capable of being enforced and there was something still left to be done to complete the extinction of the right even after the confer ment of the Fundamental Rights, then the position would be different. On the same analogy Mr. Nasiruddin had argued that after the restoration of the Fundamental Rights, the proceeding of the trial before the Special Tribunal suffered from contravention of the right under the Constitution, and this right still subsisted and continued to be infringed.

15. It is not necessary, however, to go into this aspect of the case, since the learned Assistant Advocate‑General concedes that on facts the offences] under Rule 42 (6) (e) & (g), Defence of Pakistan Rules have not been estab lished. An attempt has been made just to show that the appellant was a man of shady character and disposition with leanings, towards 'Joe‑aye Sind Movement' and be did not have that much respect which was expected of him e for the existing Government in Pakistan. But that by itself would not prove any particular act constituting an offence of exciting disaffection towards the Government or promoting feelings of enmity or hatred between different classes of citizens.

16. In the result the conviction and sentence passed against the appellant by the Special Tribunal are set aside and be is acquitted. The appeal is accepted accordingly. The appellant may be set at liberty forthwith if not required in any other case. S. Q. Appeal accepted.